Legal Briefing

Immigration | 28 September 2016

In July 2012, the UK government made significant changes to the adult dependant relative immigration route which previously fell for consideration under Immigration Rule 317. The new rules contained in Appendix FM significantly changed the criteria for this visa category to the extent that, now, comparatively few applicants are successful and the category is all but closed off. The resulting detrimental effect on British families cannot be underestimated.

Rule 317

Under Rule 317, applications could be made either from within the UK or from outside of the UK where an adult dependant relative could show that they had no other relative in their own country to whom they could turn for financial support, and where they were mainly or wholly dependent on a relative settled in the UK.

The applicant would need to be over the age of 65, and be either widowed, single or separated unless their spouse or partner was coming to the UK with them. It was also possible for applications to be made by adult dependant relatives under the age of 65 if it could be shown that they were living alone outside of the UK ‘in the most exceptional compassionate circumstances’. Further, the route was not limited to parents and grandparents, so that any adult dependant relative such as children, siblings, uncles and aunts could also apply if they too could show that they were living alone in the most exceptional compassionate circumstances.

Appendix FM

The introduction of Appendix FM in July 2012 restricted such applications so that they could only be made from outside of the UK and created new requirements to be met. The new rules stipulated that applicants:

Must as a result of age, illness of disability require long-term personal care to perform everyday tasks; and

Must be unable even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because:

It is not available and there is no person in that country who can reasonably provide it; or

It is not affordable.

Whereas it was previously possible under Rule 317 for fit and healthy adult dependant relatives to come to the UK by proving that they were alone, financially dependent on a relative in the UK, and could be maintained and accommodated, they now needed to show that they could not look after themselves, and that the care they needed could not be provided in their home country even with the financial help of the UK sponsor. These provisions represented a shift in policy which has set the threshold so high that it has closed off the route to many applicants.

Shift in government policy

This shift in government policy is clearly set out in Paragraph 121 of the government’s Statement of Intent published on 11 June 2012 which stated:

‘We will end the routine expectation of settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here.’

This is difficult to swallow, and for some British citizens and settled people in the UK makes no sense. Why shouldn’t they be permitted to bring their adult dependant relatives to the UK, when they can show that they have sufficient resources to look after them without claiming benefits? The introduction of the requirement to show that the dependant relative is unable to look after themselves feels harsh and unjustified. Even for those who are eligible, it remains incredibly difficult – if not impossible – to satisfy the requirements.

Strict evidential requirements

The evidence which must be provided with the application is as follows:

Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care in the form of:

Independent medical evidence that the applicant’s physical or mental condition means that they cannot perform everyday tasks; and

This must be from a doctor or other health professional.

Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living, from:

A central or local health authority; or

A local health authority; or

A doctor or other health professional.

As well as the above, evidence must be provided where an applicant has previously received care through a private arrangement to prove why that arrangement cannot continue. This would include for example, evidence of payments made to a carer and an explanation for why those payments could not continue or why if those payments could continue they would not be sufficient for the required level of care to be provided.

It is clear that the evidence which needs to be provided is incredibly difficult to obtain. If, for example, the required care is available in the applicant’s country, the sponsor will be in the position of having to prove that they have sufficient resources to look after the adult dependant relative in the UK while at the same time having to prove that they cannot afford to pay for the required care in their relative’s country. To be able to prove such a narrow point would require specific financial evidence from the sponsor as well as evidence relating to the care available abroad and the costs of such care. If the required care was not available, then the issue of affordability would not be relevant, but proving that the specific care required is not available is tricky.

Obtaining a report from a central or local health authority, or from a doctor who has knowledge of the facilities available throughout an entire country, can prove problematic. Further, there is the separate issue of ‘independence’. If a doctor in an applicant’s home country were to declare that an applicant’s condition (either through age, illness or disability) is such that the care they need is not available anywhere in the country, the caseworker may still dispute such a statement, even if it is coming from a doctor or a health authority with reference to their own research on the care available.

An impossible application

But just how bad is the situation? On 13 March 2014 The Joint Council for the Welfare of Immigrants (JCWI) made a Freedom of Information request to the Home Office asking for confirmation of the number of applications made under the adult dependant route since the changes to the Immigration Rules were made, and confirmation of the number of successful applications, both on initial consideration and on appeal. In a letter from the International and Immigration Policy Group (IIPG) dated 8 April 2014, JCWI were politely informed that the request could not be processed because it would be too expensive for the information to be obtained(!)

Despite this, confirmation was at least provided of the following:

‘A manual review of the available management information to identify adult dependant relative applications granted in the period from 1 November 2012 to 30 September 2013 indicates that 34 settlement visas were issued in that period to an adult dependent relative under Appendix FM.’

JCWI later published a report: Harsh, Unjust, Unnecessary: Report on the Impact of the Adult Dependant Relative Rules on Families and Children in July 2014 containing a comprehensive look at the effect the changes to the Immigration Rules have had not just on the chance of success in making an application, but also on the families themselves. In particular, the impact on the family life of children with their grandparents was researched as well as the wide ranging problems the Rules have caused such as stress and worry to UK relatives who are unable to bring their family members to the UK and look after them, as well as the financial strain that is put on families who have to support relatives from abroad while maintaining a UK household.

Regarding the success rate of applications, statistics were compiled and the data from the Home Office on grants to adult dependant relatives, prior to the introduction of Appendix FM, in the period April 2010 to March 2011 (as provided in the Home Office’s Policy Equality Statement dated June 2012) showed out of country approvals totalling 969 and in-country approvals totalling 1356. Even breaking this figure down further to include only the parents and grandparent adult dependant relatives, the total approved is 1602 consisting of 591 approved out of country and 1011 approved in-country. The most recent information available for the complete year of 2014 (ie falling under the new Appendix FM), also based on a manual search of Home Office records, shows that 723 applications were made, with 37 being approved and a further 33 being allowed on review or appeal, representing a success rate of just 5.1%. This demonstrates a clear plummet in both the number of applications being submitted and the proportional approval rate following the 2012 changes. The corresponding conclusion must be that success in this type of application has become all but impossible.

Challenges

BritCits, an organisation formed in 2012 directly in response to the new Immigration Rules of July 2012, decided to challenge the legality of the new adult dependant relative rules through a Judicial Review. The challenge was brought on the grounds that the Immigration Rules were not permitted by the Immigration Act 1971, were arbitrary, unreasonable and in breach of Article 8 of the European Convention on Human Rights. The challenge was unsuccessful on all three grounds. (Regina oao BritCits & SSHD [2016])

The Article 8 challenge was arguably the strongest, but the Court was bound by authority from the Court of Appeal to conclude that Immigration Rules could not be struck down as being unlawful through incompatibility with the Convention. This was because to be unlawful, the Rules would need to be shown to be incapable of just application in all or nearly all cases. Put another way, because some applicants under the new provisions may succeed, and the Rules do not prevent success, even though the chance of success may be slim, the Rules cannot be said to be unlawful since they may not be disproportionate to every applicant. It is a question which would need to be decided on a case by case basis.

Conclusion

To this day, a justifiable reason for the new Rules remains elusive. The primary motivation for the change was clearly economic. One of the reasons the provisions were brought in was an attempt to reduce the financial burden on the NHS and on local authorities for caring for elderly adults. It was believed at the consultation stage that the savings to the NHS would be in the region of £23m over 10 years.

But there is something fascist about keeping ‘old people’ out of a country for economic reasons. At a time when the UK Government has a working NHS Health Surcharge Online Payment Receiving system which is up and running for visa applicants, the excuse of saving the NHS money no longer seems justified. A system could be set up whereby applicants could make NHS payments at the time of making their visa applications in the same way as other immigration applicants who are applying in non-settlement categories do. Alternatively, provisions could be drafted requiring applicants to provide evidence to show that they hold private medical insurance. This would not be unusual per se as it is already a common evidential requirement for many European nationals who wish to evidence their self-sufficiency. Research conducted by the JCWI for their July 2014 report confirmed that applicants would be willing to pay for private healthcare or a ‘financial bond’ health levy.

Finally, applications for entry clearance to the UK as an adult dependant relative are among the most expensive visa applications that can be made with a price tag of (an eye-watering) £2,750 per person. The last nail in the coffin; a high price for a visa application combined with the low chance of success (with no refund in the event of a refusal) must allow for the conclusion that the UK government has done all it could to deter the adult dependant relatives of British and settled persons from applying to come to the UK. It is sad, but it seems at least for now that the threshold to be met for entry to the UK really is, ‘impossible.’